Recess

Two and a half years ago, President Obama tired of the Senate's refusal to confirm several of his nominations. Dissatisfied with the Constitution's general requirement that the president make appointments only after receiving the Senate's "advice and consent," he chose a more direct route. He declared the Senate to be in recess, and then purported to "recess" appoint four officers: the inaugural director of the new Consumer Financial Protection Bureau, and three members of the National Labor Relations Board.

The president offered a simple reason for nullifying the Senate's constitutional power: "I refuse to take no for an answer."

But the Supreme Court made clear yesterday that the answer is still "no," and this time he'll have to take it.

The Court unanimously rejected his recess appointments, in NLRB v. Noel Canning. All nine justices—even the president's own appointees, including his own former solicitor general—agreed that the president's appointments were unconstitutional. To the extent that the justices disagreed among themselves, it was only on how unconstitutional the appointments were.

Justice Stephen Breyer wrote for the Court's five-justice majority—namely, the Court's four liberals and Justice Kennedy—holding that the Senate plainly had not been in "recess" when the appointments occurred. The Senate itself had declared itself to be in session, convening "pro forma" sessions every three days. (This was a tactic devised by Senate Democrats several years ago, to prevent President Bush from making recess appointments.) During those sessions, the Senate remained fully capable of conducting official business—indeed, in the same series of "pro forma" sessions, the Senate approved President Obama's payroll tax cut extension.

To be clear, the majority opinion leaves substantial room for future recess appointments. It affirms the president's power to make recess appointments not only during the "inter-session" recess between Congress's two-year sessions, but also during "intra-session" recesses throughout the year. And it affirms the president's power to use recess appointments to fill vacancies existing prior to the recess. The Court's four conservatives, in an opinion written by Justice Scalia, rejected both of those points.

Yet even Justice Breyer's majority opinion drew a few stark lines. A recess must be greater than three days long. That number corresponds to the Constitution's prohibition against the Senate adjourning for more than three days without the House's consent. As Breyer explains, "a Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President's recess-appointment power."

The Court's majority further explains that a break of more than three days but less than ten days is "presumptively" not a recess. The ten-day standard is rooted not in constitutional text but, rather, in roughly a century of practice, in which the president declined to make recess appointments in adjournments of less than ten days. Thus, the Court would allow the president to make recess appointments in this small window only in "very unusual circumstances" in which the Senate truly is incapable of meeting to conduct its business—"a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response."

Again, Justice Scalia and the other three conservatives would have been even stricter. And Scalia strongly criticized the majority for basing so much of its decision on inferences drawn from a history of conflict between the president and the Senate, effectively ratifying what Justice Scalia sees as the president's slow encroachments upon Senate power. Scalia disagreed strongly with the notion that these constitutional issues should be decided on the basis of considerations other than constitutional text.

President Obama’s recent recess appointments have sparked no shortage of legal commentary. Does the president have the power to declare that the Senate is in "recess" in the middle of a session, and then to use his constitutional "recess appointment" power to install disfavored personnel at federal agencies?

Obama administration circumvents process for Donald Berwick.

Senator John Barrasso, a leading spokesman for congressional Republicans on health care issues, today accused President Barack Obama of "intentionally misleading" the country and Congress by appointing Donald Berwick to run the Centers for Medicaid and Medicare Services. The White House yesterday announced that Berwick would receive a "recess appointment," which allows the president to put a nominee in place without Senate confirmation.